When should a judge recuse himself or herself?

‘Inappropriate recusals are potentially very damaging.’ This statement begins the concluding portion of an article by Professor Abimbola Olowofoyeku, Professor of Law, Brunel University, London, UK, entitled ‘Inappropriate Recusals’ in The Law Quarterly Review, April 2016.

The main basis for recusals by judges (or other adjudicators, including magistrates) is actual or potential bias or the appearance thereof. It is in the Judge’s discretion to do so. As far back as 1972 in the libel appeal of Jagan v Burnham in Guyana’s Court of Appeal, the then Chancellor of the Judiciary, E V Luckhoo, rejected an application by Dr Fenton Ramsahoye, appearing for Janet Jagan, to recuse himself on the ground that his brother, Lionel Luckhoo, was appearing for Burnham.

During the 1980s Justice Claude Massiah was asked to recuse himself from a murder case against several accused due to the appearance of bias on the ground that he was a candidate for the PNC in previous elections and the accused were PPP supporters and political issues will feature in the evidence. Instead of dealing with the application, the Judge charged the lawyer for contempt of court. In a highly publicized hearing the lawyer subsequently, and understandably in those days of great fear, pleaded guilty and was fined $40,000. It turned out that the lawyer did the right thing because the Judge indicated that were it not for the plea in mitigation made by B O Adams he would have imprisoned the lawyer. That was the era of State and judicial intimidation and authoritarian rule.

There have been decisions outside Guyana suggesting that hearing of matters, where the government is a party, before an acting judge or judges would create a situation of potential bias, because the judge or judges rely on the government or a member of it, such as the Head, for confirmation of their appointment. The situation had been ripe in Guyana for objection to acting Judges hearing cases in which the government was a party because there were many acting Judges, including the Chancellor and the Chief Justice. To my knowledge an application by lawyers for recusal by Judges for this reason was made at least once but not pursued to conclusion. Where the Chancellor and Chief Justice continue to hold acting appointments, it is inevitable that an enterprising lawyer will make an objection in a case in which the government is a party. The outcome would be uncertain because appointments have to be approved by the Judicial Service Commission or the Opposition Leader, in the two highest positions.

The best known recent case relating to recusals concerned the former fascist dictator of Chile, General Augusto Pinochet. In 1998-99 he was arrested in the UK on a warrant issued by a Spanish Judge. The lower courts and the House of Lords upheld the warrant. In an application for the rehearing of the decision by the House of Lords, the appearance of potential bias was alleged in relation to Lord Hoffman, one of the judges, who, it was argued, ought to have recused himself, because his wife was an employee in an administrative capacity of Amnesty International, which was a party to the case in the House of Lords. The application was upheld and a rehearing was ordered.

Professor Olowofoyeku suggested that recusal is inappropriate on such grounds as appeasement of a party, allegations by a party, personal attacks against the adjudicator, intellectual difficulty with a matter, pragmatism or avoiding a conundrum unrelated to bias. Some principles to be considered are objectively justifiable grounds; whether litigants are judge-shopping or judges are case-shopping; a real possibility of bias as apprehended by an informed observer and not a fanciful, tenuous, fantastic or superficial possibility.

Professor Olowofoyeku urged that recusals ought only to be resorted to so that justice must be done and be seen to be done so as to maintain public confidence in the impartiality of judges and to help maintain impartiality as a matter of fact. Judges, he said, need to respond to allegations of bias very carefully and with great care and circumspection. “But they must show some ‘backbone’ in the process – i.e. be robust and strictly objective in their application of the jurisprudence.” The test, Professor Olowofoyeku reiterated, is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. He said that the judge must ask whether or not there is a real possibility that the fair-minded and informed observer might think that there was a real possibility of bias. He concludes that “a robust application of these standards, which all postulate a high threshold, should assist adjudicators to avoid acceding too readily to recusal applications.

Professor Olowofoyeku, adopting a statement made by Justice Slade in 1955 said “adjudicators ought to avoid ‘the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.’” He also said that “it is essential to heed the exhortations of Kirby P. that ‘judges should resist being driven from their courts by the conduct or assertion of parties, including assertions of actual or imputed bias.’”